[HISTORY: Adopted by the Board of Trustees of the Village of Mamaroneck 11-8-1993 as L.L. No. 8-1993, effective 11-15-1993. Amendments noted where applicable.]
A.
The Cable Television Consumer Protection and Competition
Act of 1992 authorizes franchising authorities to regulate certain rates for
cable television service and equipment.
B.
The Village of Mamaroneck desires to regulate cable rates,
except to the extent that it is prohibited from doing so by applicable law.
C.
Federal Communications Commission (FCC) regulations implementing
the Cable Television Consumer Protection and Competition Act of 1992 require
franchising authorities to adopt regulations before rate regulation of basic
service and equipment can begin.
A.
This chapter governs the regulation of rates for basic
service and equipment within the Village of Mamaroneck for any franchisee
which has been notified that the village has been certified to regulate its
basic service and equipment rates and the village has adopted these regulations
governing regulation of basic service and equipment rates. In addition, the
village may regulate the rates for cable services and equipment to the extent
not prohibited by law, pursuant to such resolutions, local laws or regulations
as it may hereafter adopt. The provisions set forth below are intended to
be consistent with all FCC regulations governing the regulation of basic service
rates and equipment, and the village and all those acting on its behalf will
regulate and interpret its rules so that they are consistent with FCC regulations,
as if those regulations were set forth in full herein. The franchisee is prohibited
from engaging in any activity it is prohibited in engaging in under FCC rules,
as if those rules were set forth in full herein. For purposes of these provisions,
the term "basic service" or "basic cable service" has the same meaning as
the term "basic service" at 47 CFR § 76.901, and the term "equipment"
refers to all equipment and services subject to regulation under 47 CFR § 76.923.
B.
To the extent the New York State Commission on Cable
Television establishes final rules for rate regulation that must be followed
by franchising authorities, those rules shall govern as if fully set forth
herein. However, to the extent that the rules of the New York State Commission
on Cable Television allow franchising authorities to follow different or additional
rules, the provisions set forth herein that may be enforced consistent with
the rules of the New York State Commission on Cable Television shall continue
to apply.
A.
Initial filings by franchisees.
(1)
Filing; when made. A franchisee that is notified that
its basic service and equipment rates are subject to regulation must file
a submission ("the rate filing") within thirty (30) days of the notification
(but no earlier than November 15, 1993), justifying its basic service and
equipment rates. All basic service and equipment rates for all customer classifications
must be justified. Once a franchisee has been so notified by the village that
its rates are subject to regulation, it may not thereafter increase its rates
for basic service or equipment without the prior approval of the village.
This requirement applies in all cases, including with respect to increases
in rates announced prior to the date the operator was notified its rates were
subject to regulation where the increases were not implemented prior to the
date of notice. A franchisee must submit a rate filing to justify any increase
in basic service or equipment rates or any new basic service or equipment
rate (collectively referred to herein as "rate increases"). An increase occurs,
without limitation, when there is an increase in rates or a decrease in programming
or customer services. Rate filings proposing and supporting rate increases
must be filed for review at least thirty (30) days in advance of the proposed
effective date of the increase. This requirement does not alter or eliminate
any other notice requirement.
(2)
Filing; where made. Every rate filing must be submitted
to the Larchmont-Mamaroneck Cable TV Board of Control (the "Board"). A rate
filing shall be considered filed for review on the date the required rate
filing and all required copies are received by the Board. Five (5) copies
of each rate filing (including all supporting materials) must be submitted.
If the operator claims any part of the filing is proprietary, it shall additionally
file five (5) copies which omit the proprietary information.
(3)
Filing; contents. Subject to FCC regulations governing
the burden of proof, a rate filing submitted by a franchisee must show that
the rates the franchisee proposes to charge for basic service and equipment
are reasonable. Except as inconsistent with FCC rules:
(a)
Every rate filing must clearly state in a covering letter
whether it justifies existing rates or proposes an increase in rates. The
covering letter must also identify any rate that is derived in whole or in
part based upon cost of service and identify any pages of the rate filing
that contain information that the franchisee claims is proprietary. It must
state whether any part of the proposed increase is based on an inflation adjustment
or an alleged increase in external costs. The cover letter should also contain
a brief narrative description of any proposed changes in rates or in service,
including, without limitation, changes in programming.
(b)
The pages of each rate filing must be numbered sequentially.
(c)
The rate filing must contain all applicable FCC forms,
and these forms must be correctly completed.
(d)
If different rates are proposed for basic service for
different classes of customers, the filing must show that the classifications
and the differences in the rate charged are reasonable and consistent with
federal law.
(4)
If the franchisee seeks to support a rate based upon
cost of service, the village will establish a rate that provides the franchisee
an opportunity to recover the reasonable costs associated with providing basic
cable service, including a reasonable profit. An expense or investment is
not presumed reasonable merely because the franchisee has incurred or made
it. A franchisee is not entitled to recover monopoly profits in any form.
(5)
In addition to information the village or Board requires
the franchisee to provide, and unless the village grants a waiver of this
provision, a franchisee who seeks to justify all or any part of its rates
based upon its cost of service must submit a complete cost-of-service analysis
that shows all expenses it incurs and all revenues derived from the system,
directly or indirectly, by the franchisee or any person that constitutes a
cable operator of the system within the meaning of 47 U.S.C. § 522(5).
The cost of service must identify the accounting level (as that term is used
in the FCC's regulations) at which each expense or revenue identified
was aggregated and show clearly how the expense or revenue was allocated.
The franchisee may not include costs at an accounting level unless it also
includes all revenues from that same level attributable to the system or to
a group of systems of which the system serving the village is a part. The
replacement cost of a comparable system must be identified and supported.
The franchisee must identify the name and address of any entity with which
it has a contract, other than a programmer, which derives revenues from the
system, and must state whether and how the revenues of that entity were included
in the cost of service. In addition, the cost of service shall clearly show
the derivation of a proposed charge per channel and the application of that
charge to yield a basic service rate. It must also show and support the derivation
and allocation of any amounts included in the derivation of the rate for:
(a)
Operation and maintenance expenses.
(b)
Administrative and general expenses.
(c)
Programming expenses (identifying retransmission consent
costs and copyright fees separately).
(d)
Costs for public educational and governmental access
(PEG) and any institutional network.
(e)
Franchise fee expenses.
(f)
Investment in the system and associated depreciation.
(g)
Other expenses, including federal, state and local taxes,
itemized.
(h)
The proposed return on equity and actual interest expense
paid by the franchisee.
(6)
Notwithstanding the foregoing, a franchisee is not required to submit the cost of service specified in § 140-3A(5) for equipment rates and instead initially shall complete, submit and support the costs of equipment using applicable FCC forms. Any cost of service submitted to justify basic service rates must show that the cost of service does not include equipment costs.
B.
Initial village review.
(1)
After receiving a rate filing, the Board promptly shall
publish in the village's official newspaper a notice that a rate filing
has been received and that, except for those parts which may be withheld as
proprietary, it is available for public review. The notice shall state that
interested parties may comment on the rate filing and shall provide interested
parties seven (7) days to submit written comments on the filing to the Board.
The Board shall submit the comments received and its recommendations for action
to the village and shall make those recommendations and comments available
for public inspection. The franchisee may submit a response to public comments
or Board recommendations but must do so no later than three (3) business days
after the Board recommendations are submitted to the village. The response
shall be filed with the Board, and if submitted in a timely fashion, the Board
shall forward a copy to the village.
(2)
Within thirty (30) days of the date of the filing, the village shall issue a written order, which may be in any lawful form, approving the proposed rate, in whole or in part; denying the proposed rate, in whole or in part; or tolling the proposed rate, in whole or in part. If the village tolls the rate, in whole or in part, its written order at a minimum shall explain that it requires additional time to review the rate filing. The order may also state that the franchisee may cure any deficiency in its filing by submitting a supplementary filing as provided in § 140-3C. With respect to existing rates, tolling means the rates may remain in effect, subject to refund; with respect to rate changes, tolling means the portion of the rate change that is tolled may not go into effect.
C.
Supplementary filings.
(1)
If a proposed rate is tolled, in whole or in part, the franchisee shall submit a supplementary filing within twenty (20) days from the effective date of the tolling order, containing corrections, if any, to its filing (including any supplement to its cost-of-service filing) and any response to information filed by interested parties or to the recommendations of the Board or any additional information necessary to support the proposed rate. Supplementary filings must be filed in accordance with § 140-3A(2).
(2)
A supplementary filing also must contain such information
as the Board or the village directs the franchisee to provide.
(3)
In addition to information the Board or the village requests
the franchisee to provide, and unless the Board or the village grants a waiver
of this provision, a franchisee that claims that it is entitled to a rate,
in whole or in part, based upon the adjustments for inflation and external
costs contemplated by 47 CFR § 76.922(d)(1)-(2) must submit the
following:
(a)
A calculation showing how each part of the adjustment
was derived.
(b)
A statement itemizing each external cost (as defined
by FCC regulations), the amount of that external cost for the two (2) calendar
years prior to the date of the filing and the year-to-date in which the filing
is made and the projected amount of the external cost for the remainder of
the year in which the filing is made and for the following calendar year.
The statement must specifically show any increases in revenues from programming
services. Revenues include all revenues, in whatever form received.
(c)
If the increase is attributable to any increase in programming
service costs, the contract for each programming service whose cost has increased,
a sworn statement identifying each programming service whose costs increased
where the programmer is an affiliate of the franchisee (as defined by FCC
regulations) and, for any contract that has been in effect less than twelve
(12) months, the prior contract for the service.
(d)
A sworn statement by the franchisee's chief financial
officer or an independent certified accountant stating that he or she has
examined all external costs (including all programming costs) and has offset
against any increase claimed the amount of any decreases in external costs,
and the amount by which any increase in external costs was below the GNP-PI,
as required by 47 CFR § 76.922(d) (2); affirming that the franchisee
has only sought to recover any external cost to the extent that cost exceeded
the GNP-PI; and affirming that the franchisee has not attempted to recover
any increase in the cost of programming purchased by an affiliate, except
as provided in 47 CFR § 76.922(d)(2)(vi).
(4)
Upon receiving the supplementary filing, the Board promptly
shall publish a notice that a filing has been received and that it is available
for public review (except those parts which may be withheld as proprietary).
The notice shall state that interested parties may comment on the filing and
shall provide interested parties twenty (20) days to submit written comments
on the filing to the Board. The Board shall submit the comments received and
its recommendations for action to the village.
(5)
The Board's recommendations and the public comments
shall be made available for public inspection. The franchisee may submit a
response to public comments or Board recommendations, but must do so no later
than ten (10) days after the Board recommendations are submitted to the village.
The response shall be filed with the Board, and, if submitted in a timely
fashion, the Board shall forward a copy to the village.
(6)
The village shall issue a written order, which may be
in any lawful form, approving the proposed rate, in whole or in part; denying
the proposed rate, in whole or in part; or allowing the rate to go into effect,
in whole or in part, subject to refund. If the village issues an order allowing
the rates to go into effect subject to refund, it shall also direct the franchisee
to maintain an accounting in accordance with 47 CFR § 76.933.
(7)
The order specified in § 140-3C(6) shall be adopted within ninety (90) days after the tolling order for any rate the franchisee justifies based on the FCC benchmark. The order shall be adopted within one hundred fifty (150) days of the tolling order for any rate the franchisee justified with a cost of service showing.
A.
Any rate order of the village shall be issued and effective
upon adoption. Each rate order shall be released to the public and the franchisee.
In any case where the village approves, denies or tolls a rate, orders that
a rate may go into effect subject to refund or orders refunds or establishes
rates, a public notice shall be published in the village's official newspaper
stating that the order has issued and is available for review. Any such order
shall be in writing.
B.
The Board and the village may take any steps that they
are not prohibited from taking by federal law to protect the public interest
as part of any rate order or by any other means. By way of illustration and
not limitation, the village may require refunds, set rates and impose forfeitures
and penalties directly or through its delegated representatives and enforce
refund orders. Any order prescribing a rate shall explain why the franchisee's
proposed rate was unreasonable and why the prescribed rate is reasonable.
However, before prescribing a rate or ordering a refund to subscribers, the
village shall ensure the franchisee has had notice and opportunity to comment
on the proposed rate or refunds. If the recommendations of the Board propose
a refund or a rate, then mailing a copy of the recommendation to the franchisee
at the time it is submitted to the village shall be deemed to provide the
franchisee this notice, and the franchisee must comment on the refund or rate
in its response to the recommendations.
C.
No order approving or setting a rate using the FCC benchmarks
shall be interpreted to establish the just and reasonable rate to subscribers.
Every such rate approved or established shall be subject to further reduction
and refund to the extent permitted under applicable laws and regulations,
as the same may be amended from time to time. By way of illustration and not
limitation, should the FCC reduce the benchmarks, the village shall have the
right to reduce a franchisee's rates and to require the franchisee to
refund any amounts collected above the benchmark, except to the extent prohibited
by federal law.
A.
A franchisee must implement remedial requirements, including
prospective rate reductions and refunds, within sixty (60) days of the date
the village issues an order mandating a remedy.
B.
Within ninety (90) days of the date an order mandating
a remedy is issued, a franchisee must file a certification, signed by an authorized
representative of the cable company stating:
C.
It is each franchisee's responsibility to keep books
and records of account so that it can refund any amounts owed to subscribers.
D.
It is each franchisee's duty to submit as complete
a filing as possible, and knowingly withholding information or making a filing
that is incomplete under applicable law shall be treated as an evasion of
this chapter.
E.
Information requests.
(1)
A franchisee and any other entity that has records of
revenues or expenses that are allocated to the franchisee's system must
respond to requests for information from the Board or village by deadlines
established by the Board or village. A franchisee is responsible for ensuring
that such other entity responds to the requests.
(2)
Because federal law limits the time available for an initial response to a filing by a franchisee before the order contemplated by § 140-3B issues, the franchisee must be prepared to respond to requests for information regarding its filing within five (5) days of the date an information request is mailed to it. The information may include the information the franchisee would be required to provide as part of any supplementary filing.
The Board shall be responsible for administering the provisions herein.
Without limitation and by way of illustration:
A.
The Board shall ensure notices are given to the public
and each franchisee as required herein and by FCC regulations.
B.
The Board may submit requests for information to the franchisee and establish deadlines for response to them, as provided in § 140-3.
C.
For good cause, the Board may waive any provision herein
or extend any deadline for filing or response, except as to such matters that
are mandatory under FCC regulations.
D.
The Board shall rule on any request for confidentiality.
A.
Except as prohibited by federal law, a franchisee's
request for approval of a rate may be denied if it:
(1)
Knowingly submits false or fraudulent information to
the Board or the village in connection with any rate proceeding.
(2)
Fails to comply with any lawful order or request of the
Board or the village, including but not limited to a request for information
or an order setting rates; or
(3)
Evades or attempts to evade federal or local rate regulation,
provided that filing for approval of a rate that is later determined to be
unreasonable is not in and of itself an evasion of federal or local rate regulation.
B.
Penalties for offenses.
(1)
Any person, firm, corporation or other entity who violates
this chapter shall be subject to a fine of up to two hundred fifty dollars
($250.) per violation.
(2)
Each day a violation hereof shall continue shall be deemed
a separate violation.
(3)
The penalty provided for herein shall be in addition
to all other remedies available to the village, legal and equitable, in the
event of a violation hereof.
A.
If these provisions or any request for information require
the production of proprietary information, the franchisee must produce the
information. However, at the time the allegedly proprietary information is
submitted, a franchisee may request that specific, identified portions of
its response be treated as confidential and withheld from public disclosure.
The request must state the reason why the information should be treated as
proprietary and the facts that support those reasons. The request for confidentiality
will be granted if the Board determines that the preponderance of the evidence
shows that nondisclosure is consistent with the provisions of the Freedom
of Information Act, 5 U.S.C. § 552 and the New York Public Officers
Law.[1] If the Board decides that information can be withheld, it will
issue a written decision explaining the basis for withholding the information
and place that decision in a public file for inspection. If the franchisee
requests confidentiality and the request is denied, where the franchisee is
proposing a rate increase, it may withdraw the proposal, in which case the
allegedly proprietary information will be returned to it; or the franchisee
may seek review within five (5) working days of the denial in any appropriate
forum. Release of the information will be stayed pending review.
[1]
Editor's Note: See Public Officers Law § 84 et seq.
B.
Any interested party may file a request to inspect material
withheld as proprietary with the Board. The Board shall weigh the policy considerations
favoring nondisclosure against the reasons cited for permitting inspection
in light of the facts of the particular case. It will then promptly notify
the requesting entity and the cable franchisee that submitted the information
as to the disposition of the request. It may grant, deny or condition a request.
The requesting party or the franchisee may seek review of the decision by
filing an appeal with any appropriate forum. Disclosure will be stayed pending
resolution of any appeal.
Any franchisee may petition for a change in status in accordance with
47 CFR § 76.915, and the village shall consider that petition in
accordance with 47 CFR § 76.915. The petition and five (5) copies
must be filed with the Board.
Should any part of this chapter be declared unconstitutional or otherwise
invalid, the remainder shall not be deemed affected thereby.